Изображения страниц
PDF
EPUB

Courts of law assume the right of limiting interest to the equity of the case. The doctrine may be, that the penalty is forfeited, and that the court, in their discretion, give such damages, and no more, for the detention of the debt, as the plaintiff shall have sustained. The one shilling usually given in Eng land seems to imply, that some damages must be given, and that less than the whole interest may be given. It has not been usual here to give any damages for the detention of the penalty of a bond, and the framers of the statute of 1 March, 1799 [III. p. 29] do not seem to have conceived, that interest might be given on the penalty or damages for the detention of it. We were singularly struck with the case of Porter v. Bussey. [p. 436.] No reason is given for the decision, but we are favoured with a very good argument of one of the learned judges against it. We cannot say what our opinion might have been, if we had been favoured with the reasons of the court. At present we incline to the opinion of the judge, who dissented.

Doubtless other cases besides those mentioned will occur on a careful perusal of this volume, in which the critical and learned `rea der may be inclined to think, that the facts have not been clearly and concisely stated, and the grounds of the decision perspicuously reported. But they are not very nu merous, nor are the defects per haps very important. We think the greatest errour is on the side of prolixity. The author has too often, we believe, "yielded to infe riour sense, and doubted his own;" a fault not very common at the present day, and which the reporter will probably mend, if he continue to follow the trade of an author. At the beginning of the Vol. III. No. 3. T

work we observed a small impro* priety, which the reporter seems himself to have corrected at an early stage. We mean the des cribing of the action immediately after the names of the parties thus, "Debt. This was an action of debt." "Assumpsit. This was an action of assumpsit," &c. But there is another redundancy, which runs through the whole work. We allude to his always naming the judges who concurred in the opin ion stated. We think the publick ought to know, what judges decid ed; but we are of opinion, that this knowledge would be better communicated by stating, in general terms, that the unanimity of the court is to be understood in every case, where a difference of opinion is not expressly stated; and where all the judges did not at tend, at any term, or in any partic ular cause, a short note at the be ginning or end of such term or cause, as the case may be, would have saved a great number of very unnecessary repetitions.

Where a judge adds nothing to the grounds or reasons of the decision, it seems quite unnecessary to state that such justice thought the plaintiff was entitled to judgment, and not the defendant. It would be sufficient simply to say, that such justice or justices concurred.

It has appeared to us, that Mr. W. is not particular enough in his method of citing statutes. In some instances we are left to con jecture what statute was intended. The date of our statutes is gener ally given, but the titles being sometimes omitted, and several having been enacted on the same day, considerable time is sometimes required to find the one referred to. We readers expect that authors will spare no pains to promote our

ease and convenience. It would have been easy for Mr. W. to have referred to the volume, page, and even section of the act. When he has done this, we have found our labour considerably lessened.

The learned judges [in p. 60, 61, &c.] speak of the statutes of Edward the third, and James the first, relating to the office of justice of the peace. Either they or the reporter should have informed as, what particular statutes were intended. During the long reign of the former, no less than three hundred and eighty-six statutes were made. It is possible the judges referred to Edward III. anno 1, c. 16, 2 c. 6, 4 c. 2, 9 c. 5, 18 stat. II. c. 2, 18 stat. IV. 34 c. 1. James I. anno 7, c. 5, 21 c. 12. The same remark applies to some other English statutes alluded to in the work. The references to the very few authorities cited are generally correct; but what book does the author mean by I. Wm.'s Abr. 427, [cited in p. 50]? Does he mean I. P. Wm's Rep. p. 429, or Wm.'s Dig. of the stat. law, which is in a single volume in our edition ?

We have observed also a loose method of quoting passages from statutes, &c. These quotations, in our opinion, should be exact. The author is not obliged to take any more than what he deems apposite; but he should cite literally. And though perhaps the variations in this volume are not very material, yet we condemn the practice as leading to errour.

On a careful perusal of this volume, but not with any particular view to find errours in grammar, or errours of the press, we have discovered, as we conceive, a number, not noted by the author in his errata. Some of these we shall subjoin to our report. They are sufficiently numerous to prove,

that our authors and printers are too negligent, when they appear before the tribunal of the publick. To the haste with which the work appears to have been prepared for the press, and run through it,is no doubt to be attributed many of these mistakes. But, we think, the publick would have gained more in correctness, than they would have lost by delay, if the publication had been deferred a few months. We san assure our readers, that we have not wished to find errours. It would have given us more pleasure to have pronounced the work faultless. Mr. W. is a lawyer, and from his notes it would appear, that he is no mean one. We consider these notes as judicious, and useful in illustrating, and sometimes correcting the text. We wished to meet with them more frequently. Professional gentlemen are greatly indebted to Mr. Douglas for his learned and careful notes in his very excellent reports. When the decisions of the King's Bench, with lord Mansfield at the head of it, admit of illustration and correction from notes of a reporter, no court in this country can complain of this freedom taken with their determinations. It has, besides, the sanction of Mr. Justice Foster's opinion and example.

It is not, perhaps, expected that we should review the decisions and opinions of the court, contained in this volume. This task will be undertaken by the several members of the profession, labouring in their vocation, by the publick, by our judicial tribunals, and we hope by the learned judges themselves. Decisions in this state have been hitherto so little regarded, that, we have no doubt, some of these will be questioned; and that succeeding judges will go upon broader

ground, than that avowed in EngJand, where it is held, that judges are bound by determinations previously and solemnly made, where the same points come again in litigation; except where the decisions are most evidently contrary to rea son, manifestly absurd or unjust, or clearly contrary to the divine law. It would, perhaps, be going too far to say, that any of the judicial opinions recorded in this volume are deserving of these harsh epithets; and yet we will venture to predict that some of them will be found incorrect; and that they will neither receive the sanction of succeeding judges, nor the approbation of the sages of the law in the other states. We will venture to include in this number the decision [Bartlett v. Knight. p. 401] contrary to a former one in this state, that a judgment, brought from another state in the union, has not the same effect here, which it would have had if used in the state in which it was recovered.* The reasoning of the learned judges (if it merits to be called reasoning) in support of their opinion, carries little weight with it. The contrary was decided in the circuit court of the U. S. in Pennsylvania [Armstrong v. Carson's Ex'rs. 2 Dall. Rep. 302]. We think, with Mr. Justice Wilson, that whatever doubts there might be on the words of the constitution, the act of congress has effectually removed them, having declared in direct terms, that the record shall have the same effect in the court into which it is carried, as in the court from which it was taken. We are the more dissatisfied with this decision, because it seems to savour of a spirit of disunion. It has

The Chief Justice and Justice Strong were at present when this decision was made.

some appearance of a preference (which, we fear, is unjust) of our judicial proceedings to those of the other states in the union.

We cannot subscribe to some of the opinions expressed in the case of Foster v. Abbot Adm'r. [p. 234.] We think the facts of the case furnished a complete bar. What do the learned judges mean by a decree of insolvency? If they mean a decree of distribution, do they intend to assert that, till this decree is made, a creditor, whose claim is rejected by the commissioners, and who does not prosecute by way of appeal according to the statute, may sue at common law ?

Nor can we yield our assent to the decision in the case of Fales v. Thompson, [p. 134] on the point that the assignees of a bankrupt are not entitled to come in and prosecute a real action commenced by the bankrupt.

In a case, circumstanced as that was, we incline to the opinion that the deed of Asa Thompson, the father, was fraudulent as against the plaintiff.

Other decisions might be mentioned as exceptionable; but we forbear entering further into the subject. If the learned judges should be disposed to think, that we have already gone too far, we trust that we shall have their forgiveness, when they consider that we have differed less in opinion with the court, than they have differed from each other. We can assure them, that the observations we have made, have not proceeded from a desire, on our part, to de, preciate their learning or talents, for which we have the most cordi al respect; nor with a view to les, sen the value of Mr. W.'s labours; for we believe, they will prove ad, vantageous to the publick, and hon, ourable, we sincerely wish we

could add profitable, to him ;-but principally, that we may have an opportunity of expressing our sin cere conviction, that our system of jurisprudence is radically defective, and that we shall never have any thoroughly examined and well-digested determinations, decisions which will stand the test of time and serve as permament and fixed rules, so long as the judges, the depositaries of our law, are wandering through the state, without any fixed or permanent place of abode,

The old proverb that a "rolling stone gathers no moss" is not more true, than that a court, constantly in motion, settles and establishes no principles of law. When the principal business of a court is to travel and to retail the law in every county town, is it reasonable to expect deep research, nice discrim. ination, or copious discussion on legal questions? Let our readers figure to themselves our supreme judicial court in session at Lenox, for example. Questions of law and trials of fact are blended together on the docket. Amid the tumult and bustle necessarily incident to trials by jury, counsel occupied and teased with clients, witnesses, &c. it is easy to see how questions of law will be argued, even by eminent counsel. The judges, long absent from their families, can hardly be supposed to be perfectly at ease in their minds. Denied all access to books, and fatigued with the labours of the day, and liable, from their situation, to constant interruptions, they cannot so much as have an opportunity of communicating their sentiments, or of hearing one another's reasons. On Saturday morning they must pronounce judgment. Under such circumstances is it not cruel to exact an opinion, and ridiculous to

expect a matured and well-digested one? The first thoughts which occur to a sensible, and if you please to a learned lawyer, on legal questions, may be reasonable, we grant; but they may not be so reasonable, so just, as after thoughts. The conjectural positions of natu ral reason, if not fortified by prec, edents, if not confirmed by elementary writers, or if they are not the result of much previous study and patient investigation, are always to be distrusted. A judge should think reasonably, but he should think and reason as one "long accustomed to the judicial decisions of his predecessors." He should be well versed in history, and especially in the history of the constitution, laws, manners, and customs of his own country.

The study of New-England an tiquities, if we may be allowed the expression, is a necessary qualifi, cation of a New-England judge, We recollect having been, a few years ago, strongly impressed with its importance on reading Hazard's Historical Collections. It is well known, that in New-England much greater regard is shewn to pro bates and letters of administration brought from the neighbouring states, than is allowed by the English law, or by the laws and usages of the other states in the union. We have found our courts admit, ting executors and administrators to sue here on the authority of letters obtained in other states, tho' we do not recollect that we ever heard them explain the origin of this deviation from the English laws.

It appears from the journal of the commissioners of the united colonies, 19th of the 7th month, 1648, [II. Hazard, 124, 135]" certain propositions were commended by the commissioners to the con

sideration of the general courts of the several colonies," which, as far as relates to our present purpose, were, "that, for the more speedy and free passage of justice in each jurisdiction, wills,proved and certified in one of the colonies, without delay be accepted and allowed in the rest and that administration, granted in the colony to which the intestate belonged, being duly cer, tified, be in force for the gathering in of the estate in the rest of the colonies." By returns of the commissioners, it afterwards appeared, that all the general courts had assented. Would it not have been desirable,that the legislature should have made provision for publishing all the old laws of the province, rather than the private acts passed since the revolution? It is appre hended,that the knowledge of these is absolutely necessary to a thor ough understanding of what is now considered as the common law of this commonwealth.

On perusal of this volume of reports we were forcibly struck with the small number of cases and authorities cited. Those of our own courts do not exceed ten, and those from the English books, probably, fall short of one hundred. Both lawyers and judges seem to be sparing of authorities, and lib eral of declamation and reasoning upon general principles. In this particular the work unfortunately resembles Root's reports. Decis ions, which rest altogether on the good sense of the judges who make, we ought not to say, who pro nounce them, will be of little use. They do not make, what was uncertain before a permanent rule, for a rule implies something binding, something which is to be fol lowed. In such cases the suc ceeding judge will be too apt to decide as his predecessor did, that

is, according to his own private sentiments; and thus we cannot expect to have the scale of justice even and steady. It will waver with every new judge's opinion.

It would give us pain to find evs idence in these reports, that our learned judges are unfriendly to the use of precedents; because it would indicate a greater reliance on their own abilities, (and we ac knowledge they are great) than any men, in our opinion, are justified in entertaining. We are far from yielding a blind obedience to authorities.

There are cases,

which do not require them, and there are decided cases, which weigh little against clear and solid principles of reason. But it is well known, that the rules respecting contracts, which furnish a great branch of civil business, are, in general, the same in this and most European countries, being mostly derived from the civil law. We ought to avail ourselves of their decisions. It is safer for the wi sest judge to lean on the matured and well-settled opinions on such questions, than on his own private judgment. We are pleased with lord Kenyon's sentiments on this subject. "Those, who are confident in their own superiour abilities," says that sound lawyer and able judge, "may perhaps fancy that they could make a new system of laws, less objectionable than that under which they live. I have not that confidence in mine; and am satisfied by the decisions and series of decisions of great and learned men, on the rules of law ; and it is my duty, as well as my inclination, to follow and give effect to those rules." The same great judge, speaking of lord Hardwicke observes,that his knowl edge of the law was most extraordinary; that he had been trained

« ПредыдущаяПродолжить »